Wednesday, May 30, 2007

Numero uno on my top ten list of losing TTAB arguments is the attempt by an Applicant to limit the identification of goods or the recitation of services in a cited application. Sales U.S.A., LLC got nowhere with that argument in its effort to overturn a Section 2(d) refusal of the mark "GO-FOR" for "low speed vehicles, namely carts, marketed to the marine industry." The Board found the mark likely to cause confusion with the mark GO-4, registered for "motorized three-wheeled land vehicles." In re Sales U.S.A., LLC, Serial No. 78475939 (May 15, 2007) [not precedential].

Examining Attorney Rebecca L. Gilbert maintained that the marks are pronounced the same way, and that the dominance of the word GO results in similar commercial impressions. Applicant pointed to the visual differences. The Board went with the PTO, finding the marks to be phonetically identical and noting that the numeral "4" is sometimes used as a shorthand for the word "for." Consequently, it deemed the marks "confusingly similar."

As to the goods, although the trade channels for Applicant's carts are limited to the marine industry, the registration is not limited. Applicant argued that, while its vehicles are identified as low-speed, registrant's are able to move at speeds of up to 40 MPH. The Board dryly noted, however, that "[o]n the face of the cited registration, the top land speed of registrant's motorized, three-wheeled vehicles is not stated."

"[O]ne could certainly envision a 'low-speed, motorized, three-wheeled land vehicle marketed to the marine industry' that would fit both registrant's and applicant's respective identification of goods."

Applicant next asserted that Registrant's goods are targeted to "security personnel or police officers" and not the marine industry. But the Board pointed out that the registration contains no limitations as to the target audience. Registrant's goods may be sold in all normal channels of trade to all the usual purchasers for the type of goods identified. Thus, "they might be sold to the marine industry as well."

And so this Applicant's decision to GO-FOR it turned out to be a no-go.